CONSTITUTION OF

INDIA
UNIT – II

PART-1 - JUDICIARY
 JUDICIARY IN INDIA
SUPREME COURT HIGH COURT

• Part V Chapter IV (Art. 124 – 147)
• Guardian of the Constitution. (Art. 13,
32,136)
• Appointment of judges. (Art. 124, 126, 127
& 128)
• Court of record. (Art. 129)
• Original, Appellate and Advisory
Jurisdiction. (Art. 131 - 143)
• Part VI Chapter V(Art. 214 - 237)
• Guardian of the Constitution. (Art. 226)
• Appointment of judges. (Art. 217, 223, 224
& 224A)
• Court of record. (Art. 215)
• Jurisdiction. (Art. 225)
 JUDICIARY IN INDIA
SUPREME COURT HIGH COURT

• No. of Judges: 30+1* (revised in 2009)

• Eligibility Art. 124: • No. of Judges: Art. 216
• Judge of High Court for 5 Years or of two • Eligibility: Art. 217
or more such courts • Held a judicial office for atleast 10
• Advocate of High Court or of two or more years
such courts for 10 years • An advocate for 10 years in the High
• A distinguished jurist in the opinion of the Court or one or two such other courts
President. • Retirement: 62 years
• Retirement: 65 years • Restriction to practice: other High Courts
• Restriction to practice: absolute and Supreme Court
*CJI + 7, 1977 : CJI + 17, 1986 : CJI + 25, 2009 : CJI + 30
 APPOINTMENT OF JUDGES

• Presently 24 High Courts in India.

• First 4 High Courts were Calcutta (1862), Madras, Bombay and Allahabad.
• Recently created HCs are Manipur, Meghalaya & Tripura.
• In 1956, LCI headed by the then Attorney General of India M.C. Setalvad, made
recommendation that in CJI’s appointment, seniority shall not be the sole criteria but
administrative competence and merit shall also be taken into consideration. This
recommendation was not followed.
• In 1973, soon after Fundamental Right case, Justice A N Ray was appointed as CJI by
superseding 3 senior most judges namely Justice Shelat, Hegde & Grover.
• In 1977, Justice M.H.Beg was appointed as CJI by superseding Justice H.R.Khanna.
 Appointment and removal of judges in SC & HC
• Judges of HC shall be appointed by President
• SC judges appointed by President of India after
consulting with CJI, other SC & HC judges.
of India after consulting with CJI, Governor
• Oath before President or any other person
and CJ of HC.
appointed by him.
• Oath has to be made before Governor or any • Removal (A.124) – on grounds of Proved
other person appointed by him. misbehavior or incapacity.
• Judges Inquiry Act, 1968;
• Resignation has to submitted to President. • Motion in LS (Min.100 members) or RS (Min.50
members)
• Removal (A.217 [1]{b})– either by attaining • LS/RS appoint judicial committee consisting of SC
62 years of age or Through removal process judge, CJ of HC & distinguish jurist;

similar as for SC judge.

• Report of committee to speaker/chairman;
• If report suggest process, removal process starts and to
be passed with simple and spcl. Majority.
 APPOINTMENT AND TRANSFER OF JUDGES

Removal proceedings initiated against various judges:

• Justice V.Ramaswami in 1990 – resolution failed in Lok Sabha.
• Justice Soumitra Sen in 2011 – resigned before passing resolution in Lok Sabha.
• Justice P.D.Dinakaran in 2011 – simply resigned before initiation of proceedings.
• Justice S.K.Ganguly in 2017 – found nt guilty by committee.
• Justice Narayan Shukla in 2018
• Senior judge in Allahabad High Court. In house investigation initiated by SC. Committee found him
guilty of misbehavior. Charges were defying SC’s direction in Medical College Scam case. He gave
decision in favor of Medical colleges run by GCRG Memorial Trust and Prasad Education Trust.
 APPOINTMENT AND TRANSFER OF JUDGES
• The appointment of judges to the Supreme Court and the High Courts, is made by the
President of India in accordance with the provisions of Articles 124(2) and 217(1) of
Constitution of India, respectively.
• S. P. Gupta v. Union of India, AIR 1982 SC 149:
• Issue was whether the advice given by CJI is binding on President ot not?
• It was held that opinion of Chief Justice of India does not have primacy in the matter
of appointments of judges;
• SC Advocates on Record Association v. Union Of India (1993) 4 SCC 441
• Executive and the Judiciary are under constitutional obligation of making
appointment of judges to the Supreme Court and the High Courts collectively in
consultation with each other;
• the opinion of the Chief Justice of India is determinative for transfer of judges of
High Courts, ‘the Chief Justice of India’ to mean a collegium of Chief Justice along
with two senior most judges.
• S.P.Gupta judgement was overruled in this case.
• Re Presidential Reference, AIR 1999 SC 1:
• Then CJI made recommendation for appointment of HC judge without consulting with other senior
judges. This led to the advisory jurisdiction of SC.
• opinion of the collegium of Judges have primacy in appointment and transfer of Judges of higher
judiciary
• opinion of the Chief Justice of India really means the views of Chief Justice taken in consultation
with his four senior-most colleagues
• National Judicial Appointments Commission (NJAC):
• proposed body responsible for the appointment and transfer of judges to the higher judiciary in India,
proposed by 99th constitution amendment vide the Constitution (121st Amendment Bill), 2014 passed
by the Lok Sabha and Rajya Sabha, assented by the President of India on 31 December 2014.
• Composition of the Commission:
• CJI - Chairperson - Ex-officio;
• Two senior most SC Judges - Member - Ex-officio;
• Union Minister in-charge of Law and Justice - Member Ex-officio;
• Two eminent persons to be nominated by a Committee comprising the Prime Minister, Chief
Justice of India and Leader of Opposition in the House of People - Members.
 JURISDICTION OF THE SUPREME COURT
• Original Jurisdiction - Art. 131
• Writ Jurisdiction- Art. 32
• Appellate Jurisdiction: Civil - Art. 133
• Appellate Jurisdiction: Criminal - Art. 134
• Certificate for Appeal - Art. 134 A
• Special Leave to Appeal - Art. 136
• Advisory Jurisdiction - Art. 143
• Review - Art. 137
• Power to withdraw and transfer cases – Art. 139A
• Court of Record - Art. 129
• Laying down Precedent - Art. 141
• Complete Justice: Art.142
 ORIGINAL JURISDICTION (ARTICLE 131)

• Dispute between:
• Govt. of India and one or more states;
• Govt. of India and any State on one side and any other State or states on
other side;
• Between two or more States
• Subject matter of Dispute: Any question of Law or Fact on which
existence or extent of legal right depends.
• Exceptions:
• Pre-Constitution Treaties, Agreements, covenants etc.
• Inter-State Water disputes;
 APPELLATE JURISDICTION IN CIVIL MATTERS (ARTICLE 133)

• From Judgment, Final Order, Decree, Sentence of High Court

• Constitutional Question involved:
• Substantial question of Law as to the Interpretation of the Constitution
• Certificate of the High Court U/A134-A
• No Constitutional Question involved:
• Substantial Question of Law of general importance
• In the opinion of the High Court the said question needs to be decided by
the Supreme Court
• Certificate of the High Court
 APPELLATE JURISDICTION IN CRIMINAL MATTERS (ARTICLE 134)

Appeal shall le to SC in two ways:

1. Without certificate of HC
• HC on appeal reverses an order of Acquittal and sentences to death.
• HC withdraws a case to itself from subordinate court and sentences to death.
• But if HC has reversed order of conviction and ordered acquittal, then no
appeal to SC.
2. With certificate of HC
• High Court certifies a criminal case as fit one for appeal to the Supreme Court.
• Substantial question of law as to the interpretation of the Constitution along
with Certificate of HC
 POWER TO WITHDRAW AND TRANSFER CASES – ART.
139A
• Under Article 139-A(1), On application made by Attorney general, party or
on its own, the SC is satisfied that –
• Cases involving same or substantially same question of law & general importance are
pending before SC and one or more HC or between various HCs;
• The SC may withdraw and dispose them.
• Under Article 139-A(2), The SC, if it is required for ends of justice, may
transfer any cases, appeal or other proceedings from one HC to another HC.
• Union of India v. Shiromani Gurudwara Prabandhak Committee, 1986:
power under Art. 139A must be used with circumspection and caution; suit
filed in Punjab against Union of India for loss of properties during operation
Blue Star transferred to Delhi HC from Punjab.
• A.R.Antuley v. R.S.Nayak, 1998 – HC’s power to transfer cases within
State.
 SPECIAL LEAVE TO APPEAL UNDER ART. 136

• Discretionary power
• Unfettered power
• From :
• Any judgment, decree, order, sentence, determination in any cause or
matter Passed or made by any Court or Tribunal
• Exception: Judgment of court of the Armed Forces
• When?
• In exceptional cases
• Illegality, Irregularity, Error of Law
• Miscarriage of Justice, to do complete justice
• Principles of Natural Justice violated
 SPECIAL LEAVE TO APPEAL UNDER ART. 136

• Union Carbide Corporation v. Union of India, 1991: Court has inherent

power to withdraw case pending in Bhopal District Court and dispose of the
same and also pending criminal proceedings initiated in the case subsequent
to filing of the suit. Power under art. 139A doesn’t exhaust the power under
Art. 136
• Columbia Sportswear Company v. Director of Income Tax, Bangalore,
2012: Special Leave petition may be sought only in cases involving
substantial questions of law, if tribunal competent to pass an order, the same
can be challenged in the High Court instead.
 ADVISORY JURISDICTION UNDER ART. 143
• President may refer to Supreme Court for opinion
• Question of Law or Fact: Which has arisen or likely to arise and is of great public
importance
• Court may after ‘Hearing’ report to the President
• Court shall after ‘Hearing’ report for matters covered in proviso to Art. 131
• Judges to hear: Minimum 5
• No litigation – Opinion not binding on the Govt.
• Re Kerala Education Bill, 1958: Supreme Court has discretion in the matter and for
reason good enough refuse to give opinion
• Ismail Faruqui v. Union of India, 1994: Supreme Court refused to answer the opinion
sought by the President on whether a temple existed at the original site where Babri
Masjid subsequently stood as it was said to be superfluous and opposed to secularism.
 BINDING NATURE OF THE SUPREME COURT
JUDGMENTS – ART. 141
• Supreme Court decisions binding on all courts within the territory of India
• Doctrine of stare decisis is not an inflexible rule of law, not applicable to the Supreme
Court
• Bengal Immunity Company v. State of Bihar, 1955: there is nothing in the Indian
Constitution which prevents the Supreme Court departing from its earlier decisions if it is
convinced of its error and its beneficial effect on the general interest of public.
• Golaknath v. State of Punjab, 1967 reversed its decision in Shankari Prasad v. Union of
India, and Sajjan Singh v. State of Rajasthan; which was further reversed in Fundamental
Rights case.
• Kartar Singh v. State of Punjab, 1995: law declared by the Supreme Court to be termed
as precedent, cannot be over-ruled even by a co-equal bench of the court
POWER TO REVIEW ITS JUDGMENTS: ART. 137

• Review lies in the Supreme Court on:

• Discovery of new matters of evidence
• Error or mistake on the face of record
• Any other sufficient reason
• Allowed only in exceptional circumstances
• Power exercisable under Order 57 Rule 1 of CPC
 CONTEMPT OF COURT, ART. 129, 215, 144
• Anything that curtails or impairs the freedom of limits of the judicial
proceedings thereby resulting in hampering the due course of Law
and interfering with the proper administration of justice
• Contempt of Courts Act, 1971: power of courts for punishing for its
contempt and lays down the procedure
• Power to punish for contempt of court under Articles 129 and 215 is
not subject to Article 19(1)(a)
• the purpose of contempt jurisdiction is to uphold the majesty and
dignity of law courts and ensure that their image in the minds of the
public is no way whittled down.
 CONTEMPT OF COURT - TYPES
• Civil Contempt:
• Section 2(b) of the Contempt of Courts Act of 1971
• wilful disobedience to any judgment, decree, direction, order, writ or other process of a
court or wilful breach of an undertaking given to a court.
• Criminal Contempt:
• Section 2(c) of the Contempt of Courts Act of 1971
• publication (whether by words, spoken or written, or by signs, or by visible representation,
or otherwise) of any matter or the doing of any other act whatsoever which:
 Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court,
or
 Prejudices, or interferes or tends to interfere with the due course of any judicial
proceeding, or
 Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of
justice in any other manner.
 CONTEMPT OF COURT

• Essentials:
• the making of a valid court order,
• knowledge of the order by respondent,
• ability of the respondent to render compliance,
• willful disobedience of the order.
• Swarup Singh Naik case: The Court in 1997 directed the State Government not to renew the
licenses of sawmills in the forest area near the Tadoba sanctuary. But in 2004 the forest
department permitted six such mills to operate in violation of the court's order. A three-judge
bench of the Supreme Court observed that Additional Chief Secretary (Forest) of Maharashtra
Government, Ashok Khot and Maharashtra transport minister Swarup Singh Naik were guilty
of violating the court order in which they were asked to shut down sawmills running without
licenses. The Supreme court sentenced both Naik and Khot to one month in prison for
contempt of court.
 INDEPENDENCE OF JUDICIARY

• Fixed and secured tenure- Art. 124(4)

• Fixed salary, not subject to vote of legislature- Art. 125
• Extension of jurisdiction by the Parliament, the same cannot be curtailed- Art.
138
• Legislature not to discuss the conduct of the judges in the house- Art. 121
• Power to punish for its contempt- Art. 129 for Supreme Court and Art. 215 for
High Courts.
• Separation of Powers between Legislature, Executive and Judiciary- Art. 50
• Judges appointed by the Executive in consultation with Judiciary- Art. 124
• Prohibition on practice after retirement- Art. 124(7), 220
THANK YOU